Mercury News editorial: Mourn Scalia, and appoint a replacement now

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This Saturday, Feb. 13, 2016 photo shows the Supreme Court building at sunset in Washington. On Saturday, the U.S. Marshals Service confirmed that Scalia has died at the age of 79. (AP Photo/Jon Elswick)

The sudden passing of Antonin Scalia Saturday was a shock to his many friends, among whom are several fellow Supreme Court justices whose views are his polar opposite. He regularly enjoyed the opera with Ruth Bader Ginsburg and went hunting (of all things) with Elena Kagan, an appointee of President Barack Obama. As a man, Scalia was complex and, within the strictures of his beliefs, eloquent and intellectually alive.

He will be deeply mourned by many and long remembered by even more.

Had he exited the Supreme Court by resignation, however, sorrow is not the first word that would to mind.

Scalia’s influence on the court was among the farthest right and the least likely to take into account the changes that time and social evolution have wrought in society, even though — in many if not most historians’ reading of the Constitution — the Founding Fathers intended it to be a fluid document.

Scalia was outraged that equal rights might be extended as marriage rights to same-sex couples. He supported the Citizens United decision that essentially made corporations people under the law — an idea that Thomas Jefferson, based on his copious writings on the potential evils of corporate influence, would have found abhorrent.

As one of his last proclamations from the bench, Scalia observed that minority students seemed to do better at less demanding colleges. Hoo boy. Did we mention Barack Obama is president? And is there any doubt that his Harvard degree helped propel him to that pinnacle?

With Scalia barely cold, the debate already rages: Should Obama appoint a replacement?

Or course he should. And he will, he says. If he finds, as we suspect, an impeccably qualified candidate with a record of adhering to law, precedent and, yes, the Constitution when it is still relevant (remember that blacks were once considered 3/5 of a person?), the burden will be on the Senate to reject him or her. Nine months is a long time for this court to run with an even number of members and no tie-breaking vote, with decisions on abortion and other divisive issues pending.

It would be irresponsible for Obama not to appoint. It is his job as president — an office he won twice with clear majorities of the popular vote, which cannot be said of the last Republican president, George W. Bush, who had fewer votes than Al Gore.

This extra bit of drama as the presidential race heats up should help bring out the vote. Which side benefits most is hard to say.

But here is an oddity. Donald Trump, Republican frontrunner, threatens to challenge Ted Cruz’s eligibility to run because he was born in Canada, albeit to an American mother. Current law stipulates that such people are considered citizens from birth. But in the legal parlance of the time, the Founding Fathers’ use of “native born” in the Constitution is clear. It comes from British common law, and it means you were born on this piece of dirt. Period.

Had Scalia been able to set aside his preference for a very conservative president, he might well have insisted on that original definition.

If Cruz is the Republican nominee, he may be grateful on many levels for Scalia’s untimely departure and the void it has created.